SUPREME COURT OF INDIA

Before:- S.P. Bharucha, Mrs. Ruma Pal and S.N. Variava, JJ.

Civil Appeal No. 4554 of 2000 (arising out of S.L.P. (C) No. 9194 of 1999). D/d. 11.8.2000.

Commissioner of Income-tax, A.P. - Appellant

Versus

Hatnam Poultry Pvt. Ltd. - Respondent

Income-tax Act, 1961, Section 256(2) - Income-Tax - Reference - Sale of eggs and birds - Question whether the income from sale of eggs and birds constitutes an income from an industrial undertaking and whether deductions under Section 80HH and 80I can be allowed is covered by decision in 1999 153 CTR SC 105 - Tribunal directed to refer the question to the High Court.

[Para 4]

Cases Referred :-

Commissioner of Income-tax v. Venkateswara Hatcheries Pvt. Ltd., (1999) 237 AIR 174 ).

ORDER

Leave granted.

2. Two questions were proposed by the Revenue for reference to the High Court for consideration. They read thus :

"1. Whether on the facts and in the circumstances of the case the ITAT was correct in law in holding that the sale of eggs and "birds by the assessee constitutes income of an industries undertaking for the purpose of allowing deductions u/Sections 80-HH and 80-I of I.T. Act.

2. Whether on the facts and in the circumstances of the case, the ITAT has erred in law in treating the poultry sheds as 'Plant' and allowing a higher rate of depreciation."

3. The High Court declined to order the reference and the Revenue is in appeal.

4. The first question is now covered by the decision of this Court in Commissioner of Income-tax v. Venkateswara Hatcheries Pvt. Ltd., (1999) 237 AIR 174 ). The second question may not be so covered. It is, therefore, appropriate to direct the Income-tax Appellate Tribunal to refer both questions to the High Court. The High Court may answer the first in the manner stated above and consider the second question.

5. Accordingly, the civil appeal is allowed. The order under appeal is set aside. The Tribunal shall now make a reference to the High Court of the two questions, set out above.

6. No order as to costs.

Appeal allowed.